Our say: Supreme Court makes good call on gay marriage

Jul 01, 2013 | 9:00 AM

Maryland has made its choice on same-sex marriage. That choice will now be faced by a lot of other states, after a pair of historic decisions by the U.S. Supreme Court last week. And the productive recent debate in Maryland - not to mention the lingering bad feelings from the high court's 40-year-old decision to nationalize the abortion issue - shows that this is the best possible outcome.Even though national opinion is shifting toward acceptance of same-sex marriage, this is an issue that should be thrashed out state-by-state by governors and legislators. A blanket edict by federal courts would prompt enormous resentment. The Supreme Court seems to agree. Even as it demolished a 17-year-old federal law barring the U.S. government from recognizing same-sex marriages allowed by state laws, it stopped short of declaring gay marriage a constitutional right.The court's highly technical 5-4 ruling in Hollingsworth v. Perry, in effect, erased Proposition 8, an anti-gay marriage referendum approved by California voters in 2008 but subsequently invalidated by lower courts. This clears the way for same-sex marriage in a state with 12 percent of America's population.The national spotlight, however, was on the 5-4 ruling in United States v. Windsor, a challenge to the federal Defense of Marriage Act. That law defines marriage as being between "one man and one woman" for the purposes of more than 1,000 federal laws and rules - including those on taxes, pensions, Social Security and federal benefits.The U.S. Constitution says nothing about marriage. Writing for the court majority, Justice Anthony Kennedy pointed out that decisions on the validity of marriages are traditionally a matter for the states. DOMA, Kennedy argued, tramples this tradition and interferes with state attempts to guarantee "the equal dignity of same-sex marriages." The law's only rationale, he contends, is to express moral disapproval of homosexuality, a form of conduct that is not illegal. This is a violation of the Fifth Amendment right to due process of law, Kennedy wrote.The court held that the federal government cannot discriminate against people who are in same-sex marriages approved by their states - not that all gays in all states have a right to same-sex marriages. But in a spirited dissent, Justice Antonin Scalia argued that the other shoe must drop: "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition."Scalia may have a point when he objects to the way the majority opinion implies that DOMA was simply an exercise in bigotry. Were all the congressmen who voted for it homophobes? How about President Bill Clinton, who signed it?But individuals and societies move on. DOMA would never be passed by Congress today. Polls indicate that today's California voters wouldn't approve Proposition 8. Society's understanding of these matters changes, and the best place to work this out is at the state level.